Adebayo Idowu V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivered the Leading Judgment)

The Appellant and one other, to wit, Popoola Adebayo Rasaki, were charged before the High Court of Ekiti State, quoram, C.I Akintayo, J on three counts viz; conspiracy to commit a felony to wit: armed robbery, armed robbery and murder which are offences punishable under Sections 5(b), 1(2)(a) of the Robbery and Firearms (Special Provisions Act), Cap.398 Laws of the Federation of Nigeria, 1990 (as amended) and Section 319 of the Criminal Code (Cap. 30) Laws of Ondo State, 1978, as applicable to Ekiti State. At the trial, the 3rd count of murder was dropped and upon arraignment the Appellant and his co-accused pleaded not guilty to the two counts of conspiracy to commit armed robbery and the commission of the substantive offence of armed robbery.

At the trial, the prosecution called 8 witnesses in proof of their case and tendered exhibits A, B, C, D and E – E6 respectively. The Appellant and his co-accused testified in their defense and called one other witness but tendered no exhibit. The case of the prosecution against the Appellant is that on the 15/8/2003 at about 11:55 p.m., robbers broke into the house of the 1st and 2nd prosecution witnesses while armed with guns and made away with the sum of Two Hundred and Twenty-One Thousand, One Hundred and Sixty-Five Naira Only (N221, 165.00) belonging to Mustapha Sunmonu (P.W.2). That in the process of the robbery, the P.W.2 was shot on the leg while one Bisiriyu Sunmonu was shot and later died in the hospital. The P.W.1 and P.W.2 testified that they were able to recognize the Appellant and his co-accused as the robbers that robbed them on the night of 15/8/2003. The Appellant and his co-accused denied participating in the robbery and contended that on the night of the robbery, they had spent the night with the Appellant’s sister (D.W.3) at Emure-Ekiti. They therefore raised the defense of alibi.

At the conclusion of the trial, the learned trial judge disbelieved the alibi raised by the Appellant and consequently found him and his co-accused guilty of conspiracy to commit armed robbery and armed robbery and sentenced them to death. The Appellant is dissatisfied with the judgment of the lower court and has now appealed to this Court vide his Original Notice of Appeal dated the 10th day of July, 2007 containing only the omnibus ground of Appeal. The Appellant subsequently filed a motion on Notice dated the 12/10/2009 and filed the 13/10/2009 wherein he sought leave of this Court to file Supplementary Record of Appeal and for leave to amend the Notice and Grounds of Appeal dated 10th July, 2007. The said motion was granted on the 14/10/2009 and accordingly the said Supplementary Record of Appeal, were deemed, Notice of Appeal, were deemed, filed and served on the said 14/10/2009 By the same application, the Appellant was granted an extension of time to file his Brief of Argument. It would appear from the Record of Appeal that, the Appellant did not file the said Brief of Argument, so he filed another motion on Notice dated 31/12/2009 seeking for further extension of time to file the Appellant’s Brief of Argument out of time. The said motion was heard and granted on the 07/06/2010. The Appellant’s Brief of Argument is therefore deemed filed the 07/06/2010. The Respondent filed the Respondent’s Brief of Argument on the 07/06/2010 within time. The Appellant then filed a Reply Brief dated the 16/9/2010 and deemed filed the 21/10/2010 vide Motion on Notice dated 16/9/2010 and filed the 17/9/2010.

As stated earlier, the Appellant was granted leave to amend his Notice of Appeal vide Motion on Notice dated the 12/10/2009 and filed The 13/10/2009. The Grounds of Appeal contained in the Amended Notice of Appeal filed 13/10/2009, without their particulars are as follows:

Record of Appeal and Amended filed and served on the said

1. The Learned Trial Judge erred in law in holding that from the available evidence, the victims of the Robbery were able to identify the Accused persons, that is, the Appellant, along with the 1st Accused, as the Robbers during and after the robbery.
2. The Learned Trial Judge erred in law in holding that the Defense of alibi raised by the Appellant along with the 1st Accused had been demolished by the case of the prosecution, and as such the defense of alibi and other defense that might be available to the Appellant and the 1st Accused even if not raised by them would not avail the accused persons.
3. The trial Court erred in law in holding that the charge against the Appellant and the 1st Accused is not actuated by malice when there exists on record evidence of persistent malice between the family of the deceased and P.W.1 and the Accused since 1994, and prior to the alleged robbery.
4. The Trial Court erred in law in relying on the evidence of prosecution witnesses whose testimonies are apart from being inconsistent and conflicting, many of the witnesses can best be described as “Tainted witnesses” Whose evidence must not only be watched with toothcomb, but is wholly unreliable.
5. The Trial Court erred in law in holding that the prosecution has been able to prove by evidence beyond reasonable doubt the ingredients of the offences of conspiracy to commit Armed Robbery and Armed Robbery as alleged or charged.
6. The findings and Judgment of the Trial Court are altogether unwarranted, unreasonable and unsupported by the available evidence before the Court.

As found earlier, the parties had in compliance with the rules and practice of this Court filed and exchanged briefs of argument. The Appellant’s Brief which is settled by Dr. Femi Jolaoso is dated the 31/12/2009 and filed the same day. It is however deemed filed the 07/06/2010. The Respondent’s Brief settled by Gboyega Adaramola Esq. for Hon. Attorney General of Ekiti State, dated the 04/6/2010 and filed 07/6/2010. The Appellant also filed a Reply Brief dated the 16/9/2010 and deemed filed the 21/10/2010.

At the hearing of the Appeal on the 7th of February, 2011, both Counsel adopted their respective briefs of argument. From the Grounds of appeal as contained in the Amended Notice of Appeal dated the 13/8/2009 and deemed filed the 14/10/2009, the Appellant distilled four (4) issues for determination as follows:

1. Whether it was proper for the Trial Court to have held that by the evidence of identification before the Court, or as available on Record, the Appellant was properly and rightly identified beyond reasonable doubt by the prosecution witnesses, as to dispense with any necessity to conduct identification parade and, or rely on the evidence of alibi promptly set up by the Accused persons. (GROUND 1)
2. Whether the prosecution had fully discharged its burden and, or duty to properly and fully investigate the defense of alibi promptly and fully set-up by, the Appellant, coupled with the detail (sic) particulars laid, or established. (GROUND 2).
3. Whether from the totality of the evidence before the Trial Court as adduced by prosecution witnesses, the Evidence of P.W.1 and P.W.2 is tainted by the hitherto existent malice between the family of the alleged victims of the armed Robbery and the 1st Accused/Appellant since 1994 till date of the alleged offence herein.

(GROUNDS 3 AND 4)

4. Whether from the totality of the evidence before the Trial Court, the prosecution had fully proved beyond reasonable doubt the essential and indispensable ingredients of the offences of conspiracy to commit Armed Robbery and principal offence of Armed Robbery as alleged or charged. (GROUNDS 5 AND 6)

The Respondents on their part also identified four (4) issues for the determination of this Court. These are:

(a) Whether from the available evidence on record, identification parade is still necessary to ascertain the visual identification of the Appellant by the witnesses, especially P.W. 1 and 2.

(b) Whether the prosecution had fully discharged its burden on the defense of alibi as set up by the Appellants.

(c) Whether the evidence of the witnesses especially P.W.1 and 2 is based on alleged malice between the victims and the 1st Appellant.

(d) Whether the prosecution had proved the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt to ground conviction of the Appellant.